Al-Asam v Minister for Immigration & Multicultural Affairs

Case [2001] FCA 1361

FEDERAL COURT OF AUSTRALIA

Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361

MIGRATION – visa – refusal to grant protection visa – whether no evidence or other material to justify the making of the decision – whether a particular fact did not exist – nature of particular fact – whether finding that appellant had never been arrested or that he had said in his application that he had never been arrested – whether finding that he had not been imprisoned during a period or that he said he had lived at home during that period – whether decision based on particular fact

Migration Act 1958 (Cth) s 476(1)(g) and (4)(b)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 applied
Abila v Minister for Immigration & Multicultural Affairs [2001] FCA 1186 cited

N258/00A v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 478 cited
Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 cited

ABDUL RUDDA ALI SALMAN AL-ASAM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 78 of 2001

GRAY, HILL & MOORE JJ
26 SEPTEMBER 2001
MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 78 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ABDUL RUDDA ALI SALMAN AL-ASAM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY, HILL & MOORE JJ

DATE OF ORDER:

26 SEPTEMBER 2001

WHERE MADE:

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 78 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ABDUL RUDDA ALI SALMAN AL-ASAM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY, HILL & MOORE JJ

DATE:

26 SEPTEMBER 2001

PLACE:

MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT

GRAY AND MOORE JJ:

Introduction

  1. This in an appeal from a judgment of a judge of this Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 January 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the appellant a protection visa.  The primary judge gave judgment on 23 February 2001: Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 127. The Minister has filed a notice of contention putting in issue two of the conclusions of the primary judge.

    Background

  2. The appellant is a citizen of Iraq who arrived in Australia by boat on 13 August 1999 and applied for a protection visa on 14 September 1999. The appellant is a Muslim of the Shi’a sect. He is married with nine children. With…

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AGLC
Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361
Case
[2001] FCA 1361
Decision Date

CaseChat Overview and Summary

The case of Al-Asam v Minister for Immigration & Multicultural Affairs concerns an appeal against a decision of the Refugee Review Tribunal which upheld a delegate's refusal to grant the appellant, an Iraqi citizen, a protection visa. The appellant, who is a Shi’a Muslim, claims to have left Iraq due to persecution and threats arising from his political activities and alleged involvement in a 1991 uprising. He asserts that he was imprisoned from 1987 to 1991, escaped from custody when rebels took control, and subsequently fled Iraq due to fears of retribution from the re-established government. The primary judge dismissed the appellant's application for judicial review, and this decision is now under appeal.

The key legal issues in this appeal revolve around the credibility and consistency of the appellant's claims, as well as the tribunal's assessment of these claims in light of the evidence provided. The appellant argues that the primary judge erred in not giving sufficient weight to certain aspects of his testimony and in failing to properly consider the risk of persecution he would face if returned to Iraq. The Minister contends that the appellant's claims are inconsistent and lack credibility, and that the tribunal's decision was correct.

The court, in its reasoning, closely examined the appellant's statements and the evidence presented. It found that the appellant's accounts were inconsistent and that there were significant discrepancies in his timeline and circumstances of departure from Iraq. The court held that the tribunal was entitled to reject the appellant's claims based on the inconsistencies and the lack of credible evidence supporting his assertions. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

In conclusion, the court upheld the tribunal's decision not to grant the appellant a protection visa, finding that the appellant's claims were not credible and that the tribunal's assessment was reasonable. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

Background

Background to the litigation

This in an appeal from a judgment of a judge of this Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 January 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the appellant a protection visa. The primary judge gave judgment on 23 February 2001: Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 127. The Minister has filed a notice of contention putting in issue two of the conclusions of the primary judge.Background The appellant is a citizen of Iraq who arrived in Australia by boat on 13 August 1999 and applied for a protection visa on 14 September 1999. The appellant is a Muslim of the Shi’a sect. He is married with nine children. With the exception of a brother and sister in Sweden his entire family still reside in Iraq. The appellant claims that he has not seen his family since 1991. The appellant’s claims concerning his reasons for leaving Iraq and experiences in that country, made in his initial interview, protection visa application and hearing before the Tribunal, are summarised at [4] of the primary judge’s decision. It is convenient to set out his Honour’s summary:“(B) Departure from Iraq:In his initial interview the applicant claimed he left Iraq in 1991. He then lived in Turkey for one year and for the rest of the time in northern Iraq and Iran. From Iran he claimed he travelled to Malaysia and Indonesia and then by boat to Australia. In his protection visa application the applicant stated he lived in Irbil in northern Iraq from January 1992 until January 1995. But he also claimed that from February 1991 until February 1995 he had various jobs in Turkey and Iran. He said from February 1995 until March 1999 he was a taxi driver and lived in the city of Qom, Iran. He claimed to have departed from Iraq illegally, travelling by car through Dohuk in northern Iraq to Turkey. He claimed he did not have difficulties in obtaining his passport, a false one, and that it had been destroyed. He had left Iran for Australia on 8 July 1991, arriving in Australia on 13 August 1991. In his departmental interview, the applicant said he had returned to northern Iraq from Turkey because the situation had improved in northern Iraq. He had lived in northern Iraq with another person for three years while his family stayed in southern Iraq. In Iran where he had gone in 1995, the applicant claimed to have been an illegal resident. At the hearing the applicant stated that when he went to Turkey in May 1991 he did not have any documents and had been smuggled across the border. He claimed to have stayed in northern Iraq from about May 1992 to 1995/96. He lived in a friend’s home at Shaqlawa about 35km from Irbil. In Iran he had spent two years in Qom and two years in Teheran. He claimed to have had none of the usual identity documents issued to refugees by the Iranian Government such as a green card or a temporary residence card. He had not applied for refugee status there because he would have had to live in a refugee camp for a period of time. Nor had he applied in Turkey because he preferred to go back to northern Iraq.(C) Reasons for departing Iraq:In his initial interview the applicant claimed he left Iraq because he was wanted by authorities. He claimed he was involved in a 1991 uprising. He had then been working as a stores manager controlling food and supplies of consumer goods. After the uprising, he was held responsible for supplying food without authority to people involved in it in Kadisio and Dagara in southern Iraq. He was not arrested but considered he had to escape. This was because if a person stole Government money the death penalty would be imposed. In his protection visa application, as summarised by the Tribunal, he claimed he was in prison from February 1987 to February 1991. The Tribunal said he also stated that he had not been convicted of a crime or any offence and that he had lived at the same address in Dagara in Iraq from January 1989 until January 1992. He claimed that in the mid seventies he had written anti-government political articles on a part-time basis for a publication in the Kurdish newspaper called Al-Taaki which was edited by his cousin. His articles were published about four or five times a week and his name appeared as the author. In Karbala in 1987 he claimed to have been taken in and questioned by the authorities concerning his editor cousin. He had been released in February 1991 during the uprising (in Intifada) by the rebels and put in charge of allocating the food stores. It was when the Iraqi forces resumed control of the area that he had escaped and gone to northern Iraq. He had paid Kurdish people to smuggle him in to Turkey. In his departmental interview the applicant again claimed that he was in jail in Karbala in 1987–1991 but was released by rebels in 1991. He claimed that if he went back to Iraq he would be executed because he had escaped from prison and was involved in helping the rebels and had left illegally. At the hearing the applicant claimed he was arrested in February 1987 because he used to write articles about politics for the newspaper Al-Taaki in the period 1974–1979. He ceased writing in 1980 when the newspaper was closed down. He further claimed that in 1987 he was invited to become a member of the Ba’ath party but had refused. At the hearing the applicant also claimed that he would be executed not only because he had left Iraq illegally but also because he had been out of that country for nine years. At the hearing he further claimed that it was not safe for him to return to northern Iraq because he was not Kurdish and had no place to stay. He said he had thrown away his passport into the ocean as his boat approached Australia as everyone on the boat did the same thing so they would not be sent back.”Tribunal’s reasons

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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